Lack of Precedent Marks Katju's Upcoming Appearance Before Supreme Court

The Supreme Court and Markandey Katju have both ignored Article 124 (7) of the constitution – which prevents a former SC judge from presenting a case.

New Delhi: When V.V. Giri’s election as president was challenged in 1969, he appeared before the Supreme Court to depose as a witness. Giri could have instead opted to be examined by a court-appointed commissioner at Rashtrapati Bhawan. Given that he was president of India and thus head of the executive, the court had to provide him with a special chair for his examination as a witness, to denote his special position.

Almost half a century later, former Supreme Court judge Markandey Katju is set to appear before the apex court in a case – the first instance of its kind. Although Katju, like Giri, could have sought an exemption from appearing by citing Article 124 (7) of the constitution, he has decided to appear before the court on November 11 and share his views on the Soumya murder case. The court has not released any details on whether it plans to treat Katju in a special manner.

But the real question plaguing the legal community is whether a former judge can be examined in this manner at all. As former secretary general of the Supreme Court, A.I.S. Cheema, told The Wire: “As for special provisions, I don’t know what they will do, you will have to wait and watch. But under Article 124 (7) you cannot call a former judge to present a case because under the Article he is debarred from appearing in the court.”

Other analysts, of course, dispute this.

Talking about Katju, Cheema said, “He (Katju) has decided to honour the notice of the Supreme Court instead of defying it. But he can now tell the court that you have done a wrong thing, that this is unprecedented and you cannot call me. If you want to know something, you could have appointed an amicus curiae, it is done in so many cases. An amicus curiae with a contrary point of view would have been available. After all, this case was argued before the court from both sides. So one side has presented its case that ‘it was a case of murder’ and the other said ‘no it was not’. Both views were available before the Supreme Court which accepted one view and not the other. And Katju has stated that it was a case of murder and the Supreme Court has given a wrong decision. Anyone who criticises a judgment on the ground of merit cannot be called to the court just because it says ‘you tell us why have you criticised’. If it is a review petition then they should have called the same party again to reargue the matter that they now have a second thought and they want to re-hear the case.”

Having seen the functioning of the apex court from close quarters, Cheema said it really does not matter if the former judge is treated in a special manner or not. “I personally consider that respect is not shown by making someone sit or stand. Respect is something different, it is all about how people view a judge. There are judges about whom people have a very low opinion. They may be given a seat anywhere and they may occupy some position, but they do not become more respectable due to that.”

It may be unprecedented, but is it legal?

Although Article 124 (7) lays down that “no person who has held office as a judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India,” Katju reacted to the Supreme Court’s invitation by saying that he would be delighted to appear before the court. However, he also added that it was up to the court to decide whether he was debarred from appearing.

He said, “I am mentioning therein that I would be delighted to appear and discuss the matter in open court, but would only like the judges to consider whether being a former Supreme Court judge I am debarred from appearing by Article 124(7) of the constitution. If the judges hold that it does not debar me, I would be happy to appear and place my view.”

On October 23, Katju also posted on his Facebook page to say that he will be appearing before the Supreme Court in the Soumya case on November 11. “I will be appearing before the Supreme Court in the Soumya case on 11th November at 2 p.m. explain why the judgment requires review, and the death sentence be imposed on the accused Govindachamy,” said the post.

Katju said that the notice received by him stated,

“A former Judge of this Court Justice Markandey Katju in a blog published on Facebook has expressed an opinion that the judgment and order dated 15th September 2016 passed by this bench in Criminal Appeal No. 1584-1585 of 2014 needs to be reviewed in an open Court hearing. Such a view coming from a retired Judge of this Court needs to be treated with the greatest of respect and consideration. We therefore reproduce herein below the blog published by Justice Katju in Facebook and convert the same into a suo motu review petition.”

The notice continued, “We therefore issue notice to Justice Katju and request him to appear in Court in person and participate in the proceedings on November 11 at 2 p.m. as to whether the judgment and order passed by this bench suffers from any fundamental flaw so as to require exercise of the review jurisdiction.”

“He (Justice Katju) is a respected gentleman. We request him to come in person and debate his Facebook post criticising the judgment. Let him come to the court and let’s debate over the fundamental flaws in our verdict,” the bench, made up of Justices Ranjan Gogoi, P.C. Pant and U.U. Lalit had stated while announcing their intention to issue notice for Katju’s appearance.

Attorney General Mukul Rohatgi, who assisted the Supreme Court in this matter, told PTI  “I think it is for the first time that the Supreme Court has asked its former judge to appear in person before it in connection with any matter.”

Katju’s opinions on the case

In a Facebook post, Katju stated that the court had erred by “not holding” the accused, Govindachamy, “guilty of murder”.

In a blog post on September 17, Katju accused the bench of going by “hearsay evidence” that Soumya jumped off the train instead of being pushed out by Govindaswamy. “Even a student of law in a law college knows this elementary principle that hearsay evidence is inadmissible,” wrote Katju.

The court’s decision to summon Katju came after the bench heard review petitions filed by the state as well as the victim’s mother. In its review petition, the state of Kerala, represented by Rohatgi, pleaded that rejecting the death penalty for  Govindaswamy’s would encourage lawlessness, referring to the fact that the accused beat his victim “black and blue” and raped her on the railway tracks.

Originally, the government had contended that, “even if the deceased (Soumya) jumped out from the train, it was occasioned by the accused since otherwise she would lose her life or honour… “

Justice Pant had held that Kerala did not provide any conclusive proof to show that Soumya was pushed out of the moving train by Govindaswamy while Justice Lalit observed that if she died from injuries incurred from jumping off the train then Govindaswamy could not be held guilty of murder.

A look at Katju’s blog post reveals that he not only wrote about the Soumya case but also addressed the “intellectual level” of the Supreme Court judges.

It is for this reason and more that people are looking forward to the November 11 hearing with great interest.

As Cheema said, “I personally consider that the judges were offended by Mr. Katju’s remarks and in order to tell him that they were right they are calling him to the Supreme Court. But, if there had been a court above Supreme Court, many judgments of the Supreme Court would have been set aside.”

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